IN THE
TENTH COURT OF APPEALS
No. 10-02-012-CR
S.L. BREWER, III,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 220th District Court
Hamilton County, Texas
Trial Court # 01-06-07153-HCCR
O P I N I O N
A jury convicted S. L. Brewer, III of possession of methamphetamine, less than one gram. The court sentenced him to serve one year in a State Jail Facility. He appeals the court’s rulings on a motion to suppress evidence and a related jury-charge issue and questions whether the evidence is legally and factually sufficient to support his conviction. We will affirm the judgment.
Sheriff’s deputies were called to a residence in Hamilton. The resident reported that Brewer was intoxicated and in possession of methamphetamine and drug paraphernalia located in a bag in the back of a pickup parked nearby. Brewer then arrived on foot.
Officer Inocencio testified that the following events occurred. He had a conversation with Brewer, who appeared to be intoxicated. Brewer denied having any property on the premises but did admit to past involvement with methamphetamine. When Inocencio confronted Brewer about the bag in the truck, Brewer admitted it was his and that it contained drug paraphernalia and methamphetamine residue, but he denied the bag contained an appreciable quantity of methamphetamine. During this conversation, Brewer opened the bag and showed Inocencio the contents. Inocencio saw syringes and a green pouch. Brewer voluntarily turned over the bag and its contents. During the course of arresting Brewer for possession of the drug paraphernalia, all the items were placed in a plastic bag. During this, Inocencio saw a small baggie containing white powder ten inches from Brewer’s feet. Brewer reminded Inocencio that the officer never saw Brewer in possession of the baggie. Inocencio testified that Brewer then gave him consent to search the bag, but Inocencio found no other illegal substances or items. Later, the substance in the baggie found at Brewer’s feet tested positive for a very small amount of methamphetamine, and methamphetamine residue was found on an item inside Brewer’s bag. The green pouch was found to contain several items of drug paraphernalia.
At a hearing on Brewer’s motion to suppress evidence, Brewer’s testimony about the events was different from Inocencio’s. (He did not testify at trial.) He said he asked Inocencio if there was a search warrant for his bag, and Inocencio replied that such a request was probable cause to arrest him. Brewer said he believed the officers had authority to search his bag without a warrant and that he was going to be arrested. He also said he was not given the Miranda warnings until the search was over.
Motion to Suppress
Brewer complains that his motion to suppress the evidence of the drugs, drug paraphernalia, and his oral statements at the scene should have been granted. He says there was no warrant and no probable cause to search his bag, he did not give consent to search, and he was in custody. Therefore, the officers should have administered the warnings required by Miranda before questioning him. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Generally, a trial court’s denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). There is an abuse of discretion “when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).
We give “almost total deference” to (a) the trial court’s rulings on questions of historical fact and (b) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). And, in the absence of explicit findings, the appellate court assumes the trial court made whatever appropriate implicit findings that are supported by the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000); Guzman, 955 S.W.2d at 89-90.
Inocencio and Brewer told different stories. Thus, the question turns on an evaluation of credibility and demeanor. If the court found Inocencio credible, which evidently it did, then it could find that Brewer gave consent to search his bag and neither a warrant nor probable cause was necessary. Furthermore, according to Inocencio, at the time the drug paraphernalia was discovered, and during the conversation he had with Brewer, Brewer was not under arrest or even detained, and therefore he was not entitled to Miranda warnings before Inocencio asked him questions.
Based on Inocencio’s testimony, which the trial court was entitled to believe, we find that the trial court did not abuse its discretion in overruling the motion to suppress. We overrule the issue.
Sufficiency of the Evidence
Next, Brewer complains that the evidence is legally and factually insufficient to support his conviction. In reviewing a legal sufficiency challenge, we view all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996) (citing due process standard from Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). In reviewing a factual sufficiency claim, we “ask[] whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof” “to the extent that the [finding of guilt] is clearly wrong and manifestly unjust.” Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The court does not view the evidence through the prism of “in the light most favorable to the prosecution.” Id. at 7 (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)); see also Goodman v. State, 66 S.W.3d 283, 285-86 (Tex. Crim. App. 2001).
It is true that mere presence at the scene does not prove possession; there must be evidence “affirmatively linking” the accused to the contraband which shows the accused had knowledge of and control over the contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). However, we do not need to decide whether the evidence is sufficient to link Brewer to the baggie found near his feet, because there was a residual amount of methamphetamine found on an item inside his bag.
To meet its burden, the State must prove that Brewer (1) exercised actual care, control, and management over the contraband, and (2) knew that the substance was contraband. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). Here, a measurable residue of methamphetamine was found on objects in Brewer’s bag, and therefore it was in his “actual care, control, and management.” Therefore, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, and the evidence is legally sufficient. Lane, 933 S.W.2d at 507.
Furthermore, Inocencio said Brewer initially told the officer there was residue inside the bag, which shows “knowledge.” See Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim. App. 1979) (possession alone may prove “knowledge” if the amount of contraband can be measured quantitatively). Considering all the evidence, we find that the proof of guilt is not so obviously weak as to undermine confidence in the jury’s determination, nor is it greatly outweighed by contrary proof to the extent that the finding of guilt is clearly wrong and manifestly unjust. Johnson, 23 S.W.3d at 11. Therefore, the evidence is factually sufficient.
We overrule the issue.
Jury Charge
Finally, Brewer complains that the trial court should have granted his requested jury-charge instruction that mere presence at the scene does not prove “possession.” The charge gave the following two instructions:
By the term “possession” is meant actual care, custody, control or management of the controlled substance.
With respect to the “possession” charged, you are instructed that such possession is a voluntary act if the possessor is aware of his control of the thing for a sufficient time to permit him to terminate his control.
Assuming without deciding that the requested instruction should have been given, when, as here, a complaint about an error in the charge is properly preserved, reversal is required if the error caused “some” harm to the accused. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon Supp. 2002); Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)). “[T]he presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction. Cases involving preserved charging error will be affirmed only if no harm has occurred.” Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (emphasis in original). When we are evaluating whether charge error caused harm to the accused, we consider: (1) the entire jury charge; (2) the evidence produced at trial, the contested issues, and the weight of the probative evidence; (3) the attorney’s arguments; and (4) any other relevant information revealed by the record of the trial as a whole. Ovalle, 13 S.W.3d at 786 (quoting Almanza, 686 S.W.2d at 171).
It was undisputed that methamphetamine residue was found on an item inside Brewer’s bag, and defense counsel made only an equitable closing argument about this irrefutable fact. Furthermore, the jury was instructed that Brewer had to be in “actual care, custody, control or management of the controlled substance.” Applying the Ovalle factors, we do not find that the denial of the requested instruction caused any harm to Brewer.
We overrule the issue.
Conclusion
Having overruled Brewer’s issues, we affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed July 31, 2002
Do not publish
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